Cantwell v. Barker

May 21, 1912

Reporters:: , ,
Before:: Eakin

Opinion by

Mr. Chief Justice Eakin.

The first question for consideration arises on the demurrer, namely: Are the facts set up in the supplemental complaint an attempt to join a suit to remove a cloud with a cause for specific performance of a contract of purchase?

1. The prayer of the supplemental complaint is somewhat misleading; but the allegations are sufficient to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍bring Strickland into the suit as a party in privity of title with defendant Barker.

2. Whatever title Strickland obtained through his judgment, he is successor in interest to Barker, and plaintiff’s right to specific performance exists not only against Barker, but aginst his assignee, lessee, or successor in title with notice; and the vendor and his vendee may properly be joined in a suit for specific performance. 36 Cyc. 761. Also it is proper to join judgment and attachment creditors in such a suit. 36 Cyc. 768. Strickland, by reason of his attachment and judgment, might have been made properly a. party defendant in the original complaint; but when he became a purchaser of the property at ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the sheriff’s sale, he became a necessary party and was properly brought in by supplemental complaint, and the court in the final decree may subject whatever title or interest he may have acquired to plaintiff’s equity, so as to give plaintiff a good title to the *15lots, free from liens of the judgment or execution sale.

3. Defendant denies that he had notice of plaintiff’s claim at the time of the attachment and judgment; but there can be no doubt that plaintiff was openly in actual possession of the property which is notice to all the world of his equity. Simpkins v. Windsor, 21 Or. 382 (28 Pac. 72) ; Rayburn v. Davisson, 22 Or. 242 (29 Pac. 738) ; Randall v. Lingwall, 43 Or. 383 (73 Pac. 1). And the defendant was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍thereby put upon inquiry and charged with notice of all facts that such inquiry would have disclosed. Therefore he acquired by the purchase nothing but the naked legal title and holds the same in trust for plaintiff. May v. Emerson, 52 Or. 262 (96 Pac. 454, 1065: 16 Ann. Cas. 1129). He could acquire no greater interest than Barker had. Dimmick v. Rosenfield, 34 Or. 101 (55 Pac. 100) ; Jennings v. Lentz, 50 Or. 483 (93 Pac. 327: 29 L. R. A. [N. S.] 584) ; Smith v. Bank, 57 Or. 82 (110 Pac. 410.)

4. Defendant by his answer denies on information and belief the contract of sale between plaintiff and Barker, which casts the burden of proof thereof on plaintiff and defendant urges that plaintiff has not proved the contract with that degree of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍certainty, as to its terms, required in such cases. But here the contract is not disputed by the vendor, who has made default in the suit. Its terms are specifically testified to by plaintiff, and he is corroborated by many circumstances, such as the procuring of fire insurance, payable in case of loss to Barker as his interest may appear; the performance of $1,000 worth of work for Barker, upon which no payments have been demanded, $800 of which being applicable to the purchase price of the lots; plaintiff’s exclusive possession from the date of the purchase and his making permanent improvements thereon.

5. Plaintiff’s contract of purchase was in parol, but comes clearly within the exception which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍takes it out of *16the statute of frauds, namely, possession, the making of valuable improvements, and the payment of the purchase price; and he is entitled to specific performance as against Barker and wife. As Strickland is a purchaser of Barker’s title, subsequent to plaintiff’s purchase, and with notice thereof, he is equally bound by the decree.

Decree affirmed. Affirmed.